Bhoora Singh @ Netra Pal Singh vs Satyaveer Singh and others

Sibghat Ullah Khan, J.—Heard learned counsel for the appellant and learned counsel for the respondents who has appeared through caveat at the admission stage.This is plaintiff''s second appeal arising out of O.S. No. 169 of 1998. which was decreed on 18.8.2006 by Additional Civil Judge. Junior Division. Court No. 4. Bulandshahr and defendants were restrained from interfering in the possession of the plaintiff over part of plot No. 510. area 0.120 hectare and part of plot No. 511. area 0.120 hectare. (Both the plots have got much larger areas.) Against the said decree defendants filed Civil Appeal No. 147 of 2006, which was allowed by A.D.J. Court No. 3, Bulandshahr through judgment and decree dated 25.1.2012. judgment and decree passed by the trial court was set aside and suit was dismissed, hence this second appeal.

Defendants respondents had not questioned the right, title or possession of the plaintiff over the area of 0.240 hectares of plots No. 510 and 511. However, defendants had contended that the land in dispute did not fall in that portion of the said plots which belonged to the plaintiff. Land in dispute was shown in the plaint map by letters Aa, Ba. Ca. Da, La, Va, Ra, Ya and it was also specified as such in the operative portion of the Judgment/decree of the trial court.

The defendants claimed that father of defendant No. 1 was allotted patta for residential purposes of an area 0.266 hectares of plot No. 511 and over the said portion defendants had constructed the house and land in dispute was included in the said portion. According to the defendants'' case land in dispute also included the defendants'' chabootara. Lower appellate court also held that chabootaras of the defendants was in existence since before filing of the suit.

I do not find any substantial error in the findings of the lower appellate court. Even if it is assumed that while making construction defendants encroached upon some part of plaintiffs land still the suit for Injunction cannot be decreed. In such situation plaintiffs are entitled to grant of damages instead of decree of demolition and injunction. I made a suggestion u/s 89. C.P.C. to Sri A.P.S. Raghav learned counsel for the defendants respondents to pay Rs. 15.000 as damages/compensation to the plaintiff appellant without any determination as to whether encroachment has or has not been made by the defendants over the land in dispute. Sri A.P.S. Raghav learned counsel for the defendants respondents agreed to the said suggestion.Accordingly, second appeal is dismissed under Order XLI. Rule 11. C.P.C. However defendants respondents as per their agreement on the suggestion of the Court are directed to pay Rs. 15.000 to the appellant. The amount may be treated to be cost/damages/compensation in the nature of no-fault liability. This amount shall be deposited before the trial court within two months failing which it may be recovered in execution along 1% per month interest since after two months till actual realisation.

With the above observations second appeal is dismissed under Order XLI, Rule 11. C.P.C.